Broken System

Twelve years ago, Texas Child Protective Services took 11-year-old Ashley Gallardo and her younger brothers from their home because workers believed they were not safe there.

The State of Texas was never able to find her a better home.

After a stint in an emergency shelter, Gallardo and her brothers were separated and sent to foster homes in different parts of the state.

Then, after three years of bouncing around foster homes, she was told she'd be moving to a foster home in Mullen, only about 20 minutes away from her brothers' home. She was ecstatic.

Today, the 23-year-old Gallardo still remembers what her new foster mother said to her, and how it was only a matter of time before she would be separated from her brothers again: "If you think that you're going to mess with my husband, you better think again."

Apparently, the woman had heard about what happened at Gallardo's last foster home, in Star, which was this: Gallardo told her caseworker that her foster father tried to rape her.

She didn't last long there. Then it was on to a foster home in Austin, where, she says, she and her foster siblings slept in a bedroom locked from the outside. They had to knock when they wanted to leave. There were cameras in the corners, but she was never sure if they were actually on.

After that, she moved to another emergency shelter and another home, where she just watched the clock until she turned 18 and aged out of the system.

Gallardo was trapped in a foster care system that's been broken for years, despite admonitions and warnings from state agencies. With each new investigation, the Texas Department of Family and Protective Services, which oversees Child Protective Services, promised change. It never came.

Which is why, last March, a New York-based child advocacy group called Children's Rights sued Governor Rick Perry and state foster care officials on behalf of the approximately 12,000 children in the system's Permanent Managing Conservatorship program.

Children's Rights is claiming what official reports have indicated for years: that CPS does little to find permanent placement for kids in PMC, and that once the department sticks a kid in PMC, he or she is virtually forgotten.

According to the suit, roughly 500 children had been in state custody for more than ten years as of May 2010. Children's Rights also points to a 2006 Texas Comptroller's report that, while these children have been removed from abusive and neglectful homes, a child in state care "was statistically four times more likely to die than a child in the state's general population."

The suit alleges that CPS harms children in PMC by:

• exposing them to abuse and neglect by substandard providers;

• separating them from siblings, significant family members and their communities;

• failing to provide them with necessary mental health services;

• inflicting emotional harm by moving them too often; and

• severe mismanagement and understaffing, leading to a lack of caseworker visitation.

These problems are even reflected in a 2010 state-commissioned study of how the courts treat kids in PMC. Judges interviewed for the report complained of CPS caseworkers, prosecutors and attorneys ad litem often being unprepared for six-month court hearings. The report also stated that due in large part to a high caseworker turnover rate, these children typically have more than one caseworker.

While these children are in CPS care, the state is required to ensure their safety and well-being by actively seeking permanent homes for them. By failing to do so, CPS has subjected them to "permanent harm on an ongoing basis, in violation of their legal rights."

Children's Rights calls for "special expert panels" to review all PMC kids who have been moved more than four times, and all those who've been in PMC for two years, to ensure their needs are being met. The organization is also demanding that children be placed only in nationally accredited homes and facilities.

Yet the suit doesn't state who should be on those expert panels, or how they should be appointed. And it's similarly vague on how the state is supposed to meet its demands of finding permanent placement in a timely manner.

The lawsuit comes on the heels of what officials and other players in the world of family services say is a complete redesign of the foster system, and that a lawsuit now will only impede the process. CPS officials say they have a plan — for real — this time. They say the lawsuit would only do more harm than good.

But in 2010, the state's Adoption Review Committee said the same thing — of the foster system itself.

"There is increasing evidence to show that our foster care system is sometimes doing more harm to our children than good," the committee reported.

To better understand just how broken the state foster care system is — and has been for ages — wrap your head around this: In November 2010, while DFPS was getting ready to roll out its redesign, which was going to show everyone how the system would no longer be deplorable, staff members at a residential treatment center called Daystar beat a 16-year-old boy, hogtied him and threw him in a closet to slowly asphyxiate to death.

In a written statement, Department Commissioner Anne Heiligenstein swore that DFPS would do "everything we can to find out exactly what happened and if this death was, in any way, preventable."

It was just one of those stern-sounding things an official has to say after a tragedy, but in this particular instance, it was decidedly tone-deaf.

For one thing, it was the fourth restraint-related death for Daystar — which operated out of a series of double-wide trailers in a field in Manvel — and its sister companies. Of those, it was the second to be ruled a homicide. (Incredibly, after the first homicide in 2002, Daystar issued a statement suggesting that "the word 'homicide' has negative connotations...")

For another, Daystar had been placed on probation the very day the boy died, a result of a number of violations, including the finding that a staff member had sexually abused a mentally ill 16-year-old girl the year before.

In fact, Daystar's executive director had, on that same day, met with a DFPS program manager to discuss the department's "serious concerns."

But Daystar had been warned of "serious concerns" before. The previous deaths brought concerns. The revelation that Daystar staffers encouraged mentally ill girls to fight each other, rewarding the winners with snacks, was a concern. (The event didn't come to light until the Houston Chronicle and Texas Tribune brought it to light in 2010.) There were always concerns — but there were always contracts. Clay Hill, the owner of Daystar's parent company, made millions off the state.

Of Daystar, Department of Family and Protective Services spokesman Patrick Crimmins stated, "We took the appropriate steps in that case, at the appropriate times." (In addition to putting Daystar on probation and suspending CPS placement of children there, another step was the appointing of a special monitor to investigate practices at Daystar for three months. Although the monitor found problems with record-keeping and training in emergency behavior intervention, he also noted that "I truly enjoyed the time I spent at Daystar.")

Although Daystar is perhaps an extreme example, it's a good one for considering just how much DFPS will tolerate from the people it has caring for kids. And it's been that way for years.

In 1995, before some of the kids in Children's Rights' lawsuit were even born, a State Health and Human Services Office of Inspector General audit found that DFPS "did not actively supervise the child placing agencies and did not actively monitor the care of the children in the foster homes."

No controls were in place to make sure these agencies and homes were meeting standards, according to the audit. And "in many cases, caseworkers did not follow treatment plans or visit children under their care, foster children were placed in potentially harmful situations, background checks were incomplete and many foster parents were not trained." Based on its review of 78 case files, 34 children "never received a visit from the state caseworker since placement, which ranged from one month to four years."

A year later, Governor George W. Bush commissioned the Governor's Committee to Promote Adoption. The idea was to identify and remove the barriers to permanent placement. Not surprisingly, the report called for caseload reduction, increasing accountability among caseworkers, attorneys and the courts by mandating post-termination case reviews, and re-evaluating the foster care reimbursement system, among other things. No one paid much attention.

In 2004, Comptroller Carole Strayhorn issued Forgotten Children, a scathing report chronicling in detail the toxic effects that overloaded caseworkers, high turnover, lack of specialized care, and substandard providers had on children. Suddenly, Governor Rick Perry decided to take a gander at things. He ordered the Department of Health and Human Services to reform the beleaguered Child Protective Services.

Legislation in 2005 was supposed to reform CPS. As a 2007 report by Texas Appleseed, an Austin-based nonprofit, noted, the measures allotted $250 million in new state funds and mandated privatization of all child placement services.

But since much of the problem stemmed from "unmanageable investigative case­loads," CPS used the bulk of the new money to hire 3,200 investigators. The results were disastrous: New investigators meant more kids were pulled from homes and placed into foster care. (The number jumped from 13,431 in 2004 to 17,547 in 2006.) With no place to stick the newcomers, CPS ultimately admitted to a state Senate committee that some foster children were sleeping in CPS offices.

What little action was taken to privatize also backfired in 2006 when one provider that managed roughly 125 foster homes reported the abuse and deaths of three foster children in four months. (Today, CPS still operates under a dual system of private and department-run placement services.)

The Texas Appleseed report noted that, while the 2005 legislation required DFPS to increase safety measures such as wider background checks, there was little to address the problem of finding permanent homes.

In 2009, Perry borrowed Bush's idea, changed a few words around and called for the creation of an Adoption Review Committee. Its subsequent report stated, "Sadly, fourteen years later, [our findings] indicate that many of the same problems identified in 1996 still exist in the current child welfare system in Texas."

Children's Rights points to this history of inaction in its suit, saying the time has come for real change.

In order to sue on behalf of all kids in Permanent Managing Conservatorship, Children's Rights told the stories of nine kids located throughout the state.

The stories are similar to Shae's: kids uprooted from abusive homes, only to be shipped to homes and treatment centers of widely varying quality throughout the state. (Children's Rights would not make the plaintiff children available for interviews for this story, even though their names would not be used.)

"Defendants have long been aware of these and other deficiencies of the Texas foster care system, yet have failed to effectively address them — leaving many thousands of children to be harmed while in the state's care," the suit alleges. The group also asserts that "children in Texas's PMC will continue to be harmed, and their constitutional rights will continue to be violated, unless and until fundamental changes are made to this damaging system."
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The last time Shae tried to kill herself, it was because she was finally in a place where people loved her.

Lubbock's Nelson Home was, by her count, the 52nd facility she'd been shuffled to in her six years in Texas's foster care system. Shae (she asked that we not use her real name) wound up in the system because her alcoholic mom gave her black eyes and belt-buckle bruises.

At the Nelson Home, she expected more of the same: staff that were indifferent at best; another therapist to B.S.; and more waking up each day wondering if she was going to stay there or be shipped to another part of the state.

During her years in the system, state-contracted psychiatrists had plied her with more medications than she could remember. Prescribing psychotropic drugs to a preteen is much easier than finding her a home. Shae got to experience nearly every kind of accommodation the state has to offer a child who's ripped from his or her parents, separated from siblings and stuck someplace that, somehow, is supposed to help the child: emergency shelters, foster homes, treatment centers.

She'd just come from a lockdown facility in San Marcos, where, she says, the staff shot up residents with thorazine to keep them mute and malleable. Sometimes, its numbing qualities were a welcome respite. She didn't have to think about her surroundings. She didn't have to feel anything.

The Nelson Home was the first place she'd come to where she suspected that the staff might actually care about her. She panicked.

"I had gotten to the place where they wouldn't just give me a shot of thorazine," the 27-year-old says, 12 years later. "They made me feel my feelings."

They were feelings she couldn't process. Ultimately, she decided God didn't love her. In what she now admits was not a very well-thought-out suicide attempt, Shae swallowed a handful of disposable razor blades.

Shae left the system when she was 18, but she says she still has nightmares.

Looking back on it now, it only makes sense to her that, while learning to survive in the state's foster care system, she got to the point where someone's expressing genuine love and care would make her want to kill herself.

Seven years before Shae found hope at the Nelson Home, she was a heavily medicated nine-year-old. A state-contracted psychiatrist believed Shae was bipolar.

Her medication changed as she bounced around. Prescribing Zoloft, then Depakote, then lithium, then Ativan to a preteen is much easier than finding her a home.

Shae wanted to live with her ex-stepdad, the man she had always considered her father, but when he and her mother divorced, he had no legal ties to her. According to Shae, this is why DFPS never considered him for placement.

And because Shae had a tendency to run away, wherever CPS wound up sticking Shae, she was always a bit of a problem. The exact terminology was "oppositionally defiant."

This is how she wound up in the San Marcos Treatment Center, where her oppositional defiance and what she described as the staff's aggression fed off each other.

Shae says there were times when she was strapped to a bed and, for a reason she doesn't understand, covered with mosquito netting. The netting would make her gag, and she'd try her best to twist and turn so she wouldn't choke on her vomit.

There were fleeting moments of peace, like when investigators came for scheduled inspections.

On those days, she says, "you get back all the things that you're supposed to have as a normal human being. So you get your mattress back on a bed, you get to, like, have sheets on your bed. You don't get stuck with a needle that day if you're not supposed to have medication given to you." (A spokesman for San Marcos was unavailable for comment.)

Eventually, the restraints and thorazine wore her down to the point where she was no longer oppositionally defiant. She was numb.

San Marcos was one place Shae was never able to run away from. Security was just too tight. But if she had ever managed to sneak away, she knew where she would want to go. Straight to the man she calls her father to this day. In her eight years in state care, that was her one wish.

"I wanted to come home to my dad," she says. "And that's all I ever wanted as a kid. That's all I ever ran away for."
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The Children's Rights lawsuit does come in the midst of what, at least on paper, looks like an overhaul of the system.

DFPS Spokesman Crimmins puts it this way: "There have been periodic calls for reform, and periodic efforts at reform. But in our opinion, this is the first 'start from scratch' effort at remaking the foster care system which has involved all of the necessary parties, including judges, foster care providers, CPS, Child Care Licensing, advocates for change and interest groups...We have acknowledged that the system needs to be redesigned, and we are working hard on this effort."

The reform is based on the recommendations of what DFPS calls its Public Private Partnership, a collective of 26 "stakeholders" in child welfare, including caseworkers, private care providers and judges (see "The People Behind PPP").

Their recommendations include:

• contracting with child placement agencies that can offer a continuum of care in the same geographic area;

• switching to a performance-based payment system that rewards providers for improvements, rather than paying them less as a child improves (this was recommended by the Texas Sunset Advisory Commission in 1996);

• opening bids to profit and not-for-profit providers, including those based out of state, with preference given to providers with experience in Texas; and

• switching from a payment rate attached to levels of care to a "blended" rate.

These changes would be implemented in three stages, beginning with a limited number of "innovation zones" that would include both urban and rural areas.

And that appears to be it. That's the complete redesign of the state's foster care system.

One of the stakeholders in the Public Private Partnership was Tina Amberboy, executive director of the Supreme Court of Texas's Judicial Commission for Children, Youth and Families. Her take on the Public Private Partnership was reflected in the commission's astoundingly superficial annual report.

According to the report, every possible stakeholder in children's welfare has gone crazy with collaboration. The collaboration is so awesome that the report includes photos of these key players standing next to each other at various conferences. In fact, the collaboration even reached the point where Child Protective Services' leadership "talks weekly on the phone" with "key partners" about "all kinds of issues," according to DFPS Director Anne Heiligenstein's press-release-approved quote in the report.

Strangely, while the commission's own annual report is written solely as an exercise in public relations, an investigation it commissioned from Texas Appleseed — the same nonprofit that reported on CPS's problems in 2007 — dispenses with the fluff and actually delivers the goods.

Focusing solely on the courts' involvement in the child placement process, the Texas Appleseed report states that at the point a child enters PMC: "Though the state's responsibility for the child's life and well-being does not change — and arguably increases — the attention paid to the child's cases diminishes drastically. There is often a sense that the 'clock stops ticking' when the child enters [PMC]."

Judges interviewed for the report said that attorneys and caseworkers charged with looking out for a child's best interest "typically had done nothing on the case until a few days before the six-month PMC placement review hearing." This process is repeated until "months and even years go by in a PMC case without any real progress on finding the child a safe and permanent home."

And, due to high caseworker turnover, "a child exiting foster care in 2008 had an average of 3.87 caseworkers. This number increases with the number of years a child spends in foster care and in PMC. In 2008, a child exiting foster care after two to three years in PMC averaged 4.34 caseworkers, compared to an average of 6.39 caseworkers for children exiting after more than three years in PMC."

And while the caseload average per worker has dropped significantly — 29 cases in 2010, compared to 43.3 in 2007 — the Child Welfare League's recommended daily caseload average should be "no more than 15 to 17 children."
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"What we at this point want is recognition by the court that this is not only bad for children, but it's unconstitutional," says Marcia Lowry, Children's Rights' executive director. "And the state really needs to be mandated to do something about it."

The lawsuit is the only way she sees of throwing a lifeline to kids who are trapped in the system.

It's the kind of help Gallardo could have used years ago, when her foster father tried to rape her.

"He had been talking about how he wasn't sure that being a foster parent is what he wanted to do," recalls Gallardo, now living in Austin. "And it was weird being the person that he talked to about it, 'cause obviously I was really young...He would just say how unhappy he was, and he started making, like, comments about how I was physically maturing and how pretty I was. And I was like, 'Oh, wow, no one's ever told me these kinds of things before.'"

One day, Gallardo says, he pushed her against a wall and tried to force himself on her. She told her foster sister, her principal and her caseworker.

Gallardo was moved to a respite home for a month while her caseworker conducted an investigation that ultimately went nowhere. Star is a small town, and somehow word spread about Gallardo's allegation. Other than her foster sister, she didn't think anyone believed her. (Oddly, although Gallardo wasn't sexually active, girls in PMC are put on birth control. She started at 13, and, depending on what was easiest for each foster parent, this switched back and forth from a pill to a shot of Depo-Provera.)

After at least a month with the foster mother who locked her foster kids in the bedroom at night, Gallardo had had enough. The mother didn't allow the kids to use the phone, so Ashley wasn't able to tell her caseworker until she was able to make a call from outside the home.

But a caseworker who didn't believe a cry of attempted rape wasn't going to think twice about a locked door.

"I tried to tell my caseworker everything that was happening, and she didn't believe me," Gallardo says, "because obviously she didn't believe me about the incident that was huge that just happened a few months out. So she wasn't even trying to hear me out on this incident."

It wasn't until about three or four months in that home, during an unannounced visit, that the caseworker saw the locks on the door, and immediately removed the children.

Then it was back to a shelter for three months, then another foster home, where she stayed until the second she aged out. She was no longer the State of Texas's responsibility. She didn't have a driver's license. She didn't know how to sign a lease or open a bank account.

Gallardo, who today works as an advocate for foster children, never gave up on her dream of finding a family, even as an adult. Fortunately for her, she developed a close friendship with a married couple at work and, at age 23, she was finally able to do for herself what DFPS was never able to: find a family to adopt her.